INTERNET, CYBERSQUATTING, DOMAIN NAME LAWYER ADVICE, LAW, UDRP, WIPO, ICANN

This study by DNattorney.com suggests that a handful of domain name arbitrators are appointed to decide a disproportionate amount of cases.

The National Arbitration Forum, which is accredited by the Internet Corporation for Assigned Names and Numbers (ICANN) as a Dispute Resolution Provider, is mandated to administer domain name disputes between trademark owners and domain name owners involving the allegation that the domain name owner is a cybersquatter. The NAF has administered approximately 10,000 such cases since 1999. The World Intellectual Property Organisation (WIPO) is one of the other ICANN-accredited domain name dispute resolution providers.

The NAF has about 141 Panellists on its roster. After examining case-related data obtained directly from the National Arbitration Forum's own web site, it was determined that certain panellists were appointed to hear a surprisingly large number of cases. ICANN's Rules allow the NAF to appoint arbitrators from its roster in cases to be heard by single panellists, and to nominate panellists in three-member panel situations. Single panel situations are by far the most common. There is no express provision that the appointment must be random however many observers and practitioners expect and understand that the process is random, or at least believe it ought to be random.

The concentration of panel appointments was apparent after the data showed that, for example, that a particular panellist presided in approximately 966 cases, the vast majority of which were single-panel cases wherein she was appointed by the NAF and not nominated by any party to the arbitration. This represents nearly 10% of the nearly 10,000 such domain name dispute cases heard by NAF, which is a clearly disproportionate amount if cases are or ought to be randomly distributed to the 141 NAF panellists on the roster.

Zak Muscovitch, a domain name lawyer and publisher of the report, says "The National Arbitration Forum has provided years of service in trademark and domain name disputes. Greater transparency is required in order to explain the concentration of cases amongst certain panellists. ICANN should revisit the Rules and require that panel appointment is always random. Otherwise, there will be an apprehension of an unfair process amongst some observers and stakeholders who believe that the selection of the panellist is of paramount importance and has a substantial likelihood of affecting the outcome of cases. To increase discussion of these and other domain dispute issues, we have created a free sign-up to receive daily NAF Case Update so that you can receive daily notices of new NAF decisions."

We have compiled statistics which we hope will provide the domain name dispute community with an idea of the approximate participation levels of all NAF Panelists.

The National Arbitration Forum is composed of 141 Panelist. As of March 5, 2010, the total number of cases decided by these 141 panelists amount to approximately 9477 cases, in total the panelist have had approximately 48 split decisions, approximately 22 cancelled claims, approximately 7 claims withdrawn, approximately 7941 claims transferred, and 1459 claims denied.*

* Note: this data was collected by Natalie Ledra, an Intern with DNattorney.com, through National Arbitration Forum's "search panelist" and "search case" web site features. It was manually checked to ensure accuracy of the data, to include only cases where a panelist member was presiding as a judge. This data was compiled from Nov 20, 2009 to March 5, 2010 and therefore cases that were decided during this period may not be reflected in the data, and therefore all numbers are approximate. Caution in the use of the statistics cited herein is advisable as this was not a scientific study and is only intended as a general guide. Any viewer wishing to advise of inaccuracies is asked to contact zak@dnattorney.com.

Compiled by Natalie Ledra - March 2010